MVP LAW GROUP – Immigration Q&A Forum, Friday, March 1, 2013

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

Question #1 – H-1B Nonimmigrant Visa
Can my spouse apply for an H-1B or does she have to apply for an H-4?

Answer #1
Your spouse may only apply for an H-1B if she has a U.S. employer willing to sponsor her H-1B temporary work visa. Otherwise, if she does not have a bona fide offer of employment from a U.S. employer willing to sponsor her, then, yes in order to accompany you and stay with you in the U.S., she would need to apply for an H4 visa. Individuals in H4 dependent visa status are NOT authorized for employment, they are NOT allowed to work.

Question #2 – Deferred Action for Childhood Arrivals
What is DACA?

Answer #2
It is a policy that will defer action for Children who qualify, who are otherwise unlawfully present in the U.S. through no fault of their own.
As listed on the USCIS website: As the Department of Homeland Security (DHS) continues to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, including individuals convicted of crimes with particular emphasis on violent criminals, felons, and repeat offenders, DHS will exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines. Individuals who demonstrate that they meet the guidelines may request consideration of deferred action for childhood arrivals for a period of two years, subject to renewal, and may be eligible for employment authorization.

Question #3 – H-1B Nonimmigrant Work Visa
How long does my H-1B Visa last? What if it is about to expire? How do I re-apply?

Answer #3
An H-1B visa will last for the validity period as provided on Form I-797 (I-129 Approval Notice). A typical H-1B visa is approved for a period of three years, and may be extended once for an additional three years, totaling 6 years in H-1B nonimmigrant visa status; however, certain circumstances do exists that will make an H-1B applicant eligible for H-1B extensions beyond the six year limit.

If your H-1B visa is about to expire, you need to know how much time you have remaining in H-1B nonimmigrant visa status. If you have time remaining, you will need to file an H-1B extension with the USCIS requesting an additional period of time, not to exceed three years. If you do not have any time remaining, you will have to leave the U.S. for a period of one (1) year, and after one (1) year you will become subject to the H-1B Annual Cap and will need to apply for a new H-1B to return to the U.S.

Question #4 – Temporary Nonimmigrant Work Visas
My company is in the process of setting up a United States office. They would like for me to transfer to the US to oversee their daily operations. I am not sure how long I will be staying. Do I apply for an H-1B or L-1 Visa?

Answer #4
I cannot answer case specific questions in this forum, therefore, I have provided below, basic information concerning the H-1B and L1 visa. We recommend that you speak with an experienced Immigration Attorney to determine which visa will be most suitable for your situation.
The H-1B non-immigrant worker visa is subject to numerical limitations imposed by Congress. Each fiscal year, beginning on April 1, 65,000 visas are available for those who qualify for ‘Specialty Occupations.’ Specialty Occupations are defined as those that require a theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. The laws regarding the H-1B visa are in constant flux and applicants seriously considering this category as a means of working in the U.S. on a temporary basis should stay informed and updated as much as possible. Due to the fact that an applicant’s circumstances and the circumstances of his/her dependent family members may require special attention, the following information is not tailored to any one individual but provides general information about this category. The H-1B visa allows foreign workers to enter the U.S. and work in a variety of fields ranging from architecture and engineering to teaching and medicine. The H-1B visa offers a wide range of employment possibilities and is a logical first step toward permanent immigration. In order to qualify for H-1B classification, the applicant must have at least a U.S. bachelor’s degree or its foreign equivalent AND the job sought must require at least a bachelor’s degree or its equivalent. This is not a self-petitioning category; therefore the applicant must have a sponsoring employer in the U.S. The spouse and unmarried children below the age of 21 are allowed to accompany or join the H-1B worker as H-4 dependents. However, they cannot work unless they qualify for a work visa. H-4 dependents can enroll and attend schools in the U.S. without obtaining a student visa.
The L-1 visa allows companies operating both in the U.S. and abroad to transfer certain types of employees from its overseas office to the U.S. office for up to seven years. This visa comes in the following categories: L-1A – for executives and managers; and L-1B – for personnel with specialized knowledge. Businesses that function both in the United States and in their home country gain the benefits of the best of both areas. The L-1 visa is open to international organizations with offices in the U.S. who transfer employees to the U.S. office for temporary periods of time. This visa is sometimes referred to as the ‘intra-company transferee’ visa. To obtain an L-1 visa, you must be able to prove that you have worked for the non-U.S. company for at least one full year within the last three years as an executive, manager or employee with specialized knowledge. The L-1 visa enables the transfer of managers, executives and specialized knowledge personnel to a U.S. office, subsidiary or affiliated company. Spouses and unmarried children under the age of 21 qualify for L2 status. Spouses may seek employment by filing form I-765. Children may attend school.

Question #5 – General
I am from Jamaica and have always wanted to live and work in the United States. My friend and I thought about applying for work at Disney World. What kind of Visas would we need?

Answer #5
You would need to speak with a Representative at Disney World, as they have several international exchange programs available for international applicants. They have a J1 Cultural Exchange Program that may suit your needs.

Question #6 – Temporary Nonimmigrant Work Visas
Can a Canadian native apply for an H-1B? Or do they only qualify for a TN Visa?

Answer #6
Anyone may apply for an H-1B nonimmigrant work visa so long as they meet the educational requirements. Only Canadians citizens and Mexican citizens may take advantage of the TN visa.

Question #7 – Temporary Nonimmigrant Work Visas
I am a Brazilian Soccer player. A few teams in the United States have contacted me to come & play for them. I am interested in traveling to the US to play. What are the differences between the 0-1 and 0-2 Visas?

Answer #7
The O-1 Visa is reserved for those with Extra-ordinary ability in the Sciences, Arts, Education, Business or Athletics and for those who have demonstrated records of extraordinary achievement in the Motion Picture or Television Industry. To be considered an outstanding individual, an applicant should be highly regarded in their particular field, and may only work in the U.S. in that specific area of expertise. The O-1 Visa is for outstanding individuals. This visa enables individuals with extraordinary ability in the sciences, arts, education, business, athletics, motion picture and television industry to enter the U.S. for temporary periods of time. USCIS loosely defines this category, and the spectrum of eligible individuals also includes chefs, carpenters and lecturers. The O-1 Visa must be petitioned by a US employer, U.S. agent or foreign employer through a U.S. agent. The spouse and/or unmarried children under the age of 21 may join the applicant in the U.S. under O-3 status. While they may not work while in the U.S., immediate family members are allowed to attend school or college. To qualify for an O-1 in the Sciences, Education, Business or Athletics, a person must demonstrate either of the following:

1. Receipt of a major, internationally-recognized award (e.g. the Nobel Prize), or
2. At least three (3) of the following apply to him/her:

– Receipt of nationally or internationally recognized prizes or awards for excellence in his/her field.
– Membership in an association in the field which requires outstanding achievements of its members, as judged by national or international experts in the field.
– Published material in professional or major trade publications or major media about the person, concerning the person’s work in the field.
– Participation on a panel, or individually, as a judge of the work of others in the field.
– Scientific, scholarly, or business-related contributions of major significance in the field.
– Authorship of scholarly articles in the field in professional journals or other major media.
– Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
– High salary or other remuneration commanded by the person for services

The O-2 Visa enables the support personnel of an artist or athlete (O-1 visa holder) to accompany and assist the performer in a specific event or performance. The presence and support of the O-2 personnel must be essential to the successful performance of the O-1 visa holder. O-2 visas are offered to support personnel of O-1 Visa holders in the fields of athletics, entertainment, science, business or education. This status is not applicable to personnel in the motion picture and television industry. The O-2 Visa must be petitioned by a U.S. employer, U.S. agent or foreign employer through a U.S. agent. The spouse and/or unmarried children under the age of 21 are permitted to accompany the applicant to the U.S., under an O-3 status. The dependents of the applicant must be able to prove immediate family relation to the applicant. Dependents are not allowed to work while in the U.S., although they may attend school or college. More than one O-2 application may be included on the same petition, if all parties are helping the same O-1 applicant for the same events or performances, during the same period of time and at the same location.

Question #8 – Family Based Green Card
My fiancé and I have been dating for 2 years and we plan to get married in the next year. He is from Peru and is currently using a Student Visa. Can he apply for a Fiancé Visa now or should he wait until after we are married to get a Spousal Visa?

Answer #8
I cannot answer case specific questions in this forum. We recommend that you speak with an experienced Immigration Attorney to determine which process will be most suitable for your situation.

Question #9 – H-1B Nonimmigrant Work Visa
I have applied for an H-1B Visa. My wife has applied for a H4 Visa. Do we need to apply for an H4 Visa for all of our children? 2 of our children are under 3. The other one is 6 years old.

Answer #9
If your children are not U.S. citizens, then yes you will need to include them. Your children should have been included in your wife’s H4 application (Form I-539).

Question #10 – Employment Based Green Card
For the past 7 years, I have been attending medical school and working as a resident at some of the local hospitals. I would like to stay in the US and find a permanent position as a doctor. How do I get my Green Card and how long does it take?

Answer #10
In many cases, individuals find a permanent position with a company willing to sponsor their Green Card process. The length of the process depends upon which preference category you fit under and your country of birth.

MVP Law Group would like to thank everyone who contributed a question or comment.

Our next “Immigration Q & A Forum” is scheduled for Friday, March 15, 2013!

Please remember to submit your questions/comments on our H1B Visa Lawyer blog!

Contact Information